Thursday, 15 January 2009

Sustainable development is one of the fundamental principles of the European Community (European Union), both internally and internationally.

The environmental, economic and social aspects of sustainable development are clearly felt, when we look at the environment policy objectives of the European Union.

The Treaty of Lisbon underlines the importance of action against climate change (supported by an overwhelming scientific opinion, but with vocal opponents).

We look at the current and the Lisbon Treaty provisions on the EU’s environmental policy aims.

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Article 174 TEC

Article 174 (ex Article 130r) of the current Treaty establishing the European Community (TEC) sets out the principal aims of European Community (European Union) environment policy, which can be read on their own in paragraph 1.

Paragraph 2 contains a number of important guiding principles for environmental legislation and action. Especially the following ones are worth mentioning:

– a high level of protection– the precautionary principle– preventive action– rectification at source– the polluter pays

The paragraph evokes the seriousness of environmental concerns by promising safeguard clauses allowing provisional measures, where appropriate and limited to non-economic reasons, as well as subject to control by the European Community.

Paragraph 3 raises expectations of rational decision making, based on scientific and technical data as well as economic and social facts and considerations.

International cooperation is an activity for both the European Community and for the member states (paragraph 4).

Here is Article 174 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123–124:

TITLE XIXENVIRONMENT

Article 174 TEC

1. Community policy on the environment shall contribute to pursuit of the following objectives:

— preserving, protecting and improving the quality of the environment,

— protecting human health,

— prudent and rational utilisation of natural resources,

— promoting measures at international level to deal with regional or worldwide environmental problems.

2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.

3. In preparing its policy on the environment, the Community shall take account of:

— available scientific and technical data,

— environmental conditions in the various regions of the Community,

— the potential benefits and costs of action or lack of action,

— the economic and social development of the Community as a whole and the balanced development of its regions.

4. Within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.

The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.

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Original Lisbon Treaty (ToL)

Article 2, point 143 amended Article 174 (OJEU 17.12.2007 C 306/87):

ENVIRONMENT (CLIMATE CHANGE)

143) Article 174 shall be amended as follows:

(a) in paragraph 1, the fourth indent shall be replaced by the following:

‘— promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.’;

(b) in paragraph 2, second subparagraph, the words ‘Community inspection procedure’ shall be replaced by ‘a procedure of inspection by the Union’;

(c) in paragraph 4, first subparagraph, the last phrase ‘, which shall be negotiated and concluded in accordance with Article 300’ shall be deleted.

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Renumbering the Treaty of Lisbon (ToL)

The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.

Article 174 TEC first became Article 174 TFEU (ToL), but was then renumbered Article 191 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).

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Lisbon Treaty consolidated

Article 191 TFEU

The Article was renumbered and in a number of instances ‘Community’ was replaced by ‘Union’ according to the horizontal amendment mentioned in Article 2, point 2(a) on OJEU page 42 of the original Treaty of Lisbon.

The political change desired by the intergovernmental conference (IGC 2007) was adding ‘and in particular combating climate change’ to the regional and worldwide environmental problems at international level.

Environmental policy already includes action against climate change, but the IGC 2007 felt a need to underline its commitment. The provision does not add EU powers, but growing realisation of the need to act and added emphasis may lead to more concerted action. In this respect the amendment can be called substantive.

Article 191 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/132–133):

TITLE XXENVIRONMENT

Article 191 TFEU(ex Article 174 TEC)

1. Union policy on the environment shall contribute to pursuit of the following objectives:

— preserving, protecting and improving the quality of the environment,

— protecting human health,

— prudent and rational utilisation of natural resources,

— promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union.

3. In preparing its policy on the environment, the Union shall take account of:

— available scientific and technical data,

— environmental conditions in the various regions of the Union,

— the potential benefits and costs of action or lack of action,

— the economic and social development of the Union as a whole and the balanced development of its regions.

4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned.

The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.

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Sustainable development

Preamble TEU

The Lisbon Treaty rests on the principle of sustainable development – balancing its environmental, economic and social aspects – as evoked by the Preamble of the Treaty on European Union (TEU):

DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields.

Article 3 TEU

Sustainable development is mentioned among the aims of the European Union in Article 3(3) TEU:

3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

International relations

Internationally the European Union has pledged to promote sustainable development, as seen in Article 3(5) TEU:

5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

In its international relations, the European Union pursues common policies and actions in order to foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty. Cf. Article 21(2)(d) and (f) TEU.

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Horizontal clause

One of the horizontal clauses of the Treaty on the Functioning of the European Union (TFEU) is Article 11, which peremptorily declares that environmental protection requirements must be integrated into EU policies and activities:

Article 11 TFEU(ex Article 6 TEC)

Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.

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EU competence

In the general scheme of things, EU competence in the area of environment is set out in the following way:

Against the background of Article 2 TFEU, with the categories of European Union competence, Article 4(2)(e) TFEU mentions the environment as one of the areas of shared competence.

These general classifications are always subject to the more detailed provisions on certain policy areas.